125 Va. 626 | Va. | 1919
delivered the opinion of the court.
This suit in equity was brought by Mrs. Martha Clark and her son, William Clark, against Johnson Reynolds to enjoin and restrain him from interfering with their use of a private road or right of way through his premises. The relief prayed for was denied them by the circuit court, and the Clarks brought this appeal.
The land bought by Sullins from Thompson lay within the exterior lines of a larger boundary which was and is traversed by one of the public roads of the county. This larger boundary was owned by one A. R. Mallicote, and Thompson acquired from him a part thereof, which embraced the Sullins land. The Thompson land, including the part conveyed to Sullins, all lay north of the county road, but did not extend to or touch it at any point.
When Sullins purchased from Thompson, Mallicote still owned the land between that purchase and the public road, and there was a private road leading from the Thompson land to the public road on the south. At that time Thompson and Mallicote pointed out the road to Sullins, and told him that was his road. This fact is shown by the testimony ofj Mrs. Clark and of Joseph Sullins, a son of Traynor Sul-lins, both of whom were familiar with the transaction and testified with convincing clearness and definiteness upon the subject.
Some of the statements of Mrs. Clark appear to be based upon what her father and husband repeated to her as having been said to them by Thompson and Mallicote; but this portion of her testimony was elicited from her upon cross examination, and was not made the subject of objection or exception either in this suit or in the court below. Hearsay testimony not objected to is good. Newberry v. Watts, 116 Va. 730, 736, 82 S. E. 703. The testimony of Sullins was a direct account of what he heard Thompson and Mallicote say. There was objection to his testimony on the ground that Mallicote was dead, but the objection
Soon after the purchase of the eight and one-half acre tract of land by Traynor Sullins, he and his son-in-law, Samuel Clark, each built homes thereon and moved into the place over the road which led to it and which had been previously pointed out to them as theirs by Thompson and Mallicote. The road thus pointed out to and traveled by them is the road in controversy here, and from that time on for forty years they used the same without question from anybody, and to all substantial intent and purposes it was not used by any other persons except those owning or subsequently acquiring parts of the original Mallicote lands. There was more or less occasional use of the road by strangers, but no general use by the public in any such sense as rendered the use by the Clarks dependent upon or in common with its use by others. For many years after the purchase by Sullins, Mallicote remained the owner of the land lying to the south and extending to the public road, and never once raised a question as to the use of the right of way by Sullins or the Clarks. Phillip Reynolds, the father of Johnson Reynolds, the defendant here, succeeded Mal-licote as the owner of this intervening land, and continued to own the same for about twenty years, during all of which time he likewise acquiesced in its use by the Clarks without complaint or question. There are some expressions in the testimony for the complainants to the effect that they used the road with the consent or permission of Mallicote and Reynolds, but it is abundantly clear from the testimony as a whole that the meaning of the witnesses was that this so-calied consent and permission was merely such an acquiescence and recognition of a right as would be expected from and obligatory upon the owner of lands through which other persons were lawfully using an established right of way. There is no just foundation in the evidence for any
About three years before this suit was brought, Johnson Reynolds, the defendant, became the owner of the land over which the right of way passes. Shortly thereafter, unpleasantness arose between him and some of the Clarks,-with the result that he finally put a lock on the gate opening from the county road into the private way, and denied, as he now denies in his answer, that complainants had any legal right to the way through his place.
Pending the difficulties which had arisen between Johnson Reynolds and the Clarks, Reynolds and David Clark, one of Mrs. Martha Clark’s sons, agreed upon a settlement, and Reynolds signed a contract evidencing the same, which was introduced in evidence over his objection, but upon which he now seems to rely to some extent as sustaining his position in this case. This contract will be adverted to again, but is not in our view very material to a decision of the controversy.
Upon the foregoing facts, we have no difficulty in holding that the complainants have shown themselves entitled to a right of way by prescription. The roadway was in existence when Traynor Sullins bought from Thompson. Its origin was not shown. It may have been actually granted by Mallicote to Thompson, the grantor of Traynor Sullins. It is true that James H. Thompson, a son of John Thompson, testified that he did not remember that his father ever claimed a right of way over the road in question, but the testimony of this witness taken as a whole is altogether too vague, uncertain and non-committal to' be entitled to much weight.
The case, so far as concerns the right of complainants to the road in question as a means of ingress and egress to and from the Sullins land, is controlled by well-settled and familiar principles which are fully discussed in a number of
“March 16, 1914. This is to certify that Johnson Reynolds this day has agreed that Mrs. Martha Clark, the*633 widow of the late Samuel Clark, shall have a right of way on the old road that has been used by her and her heirs [airs\ and the said David Clark and heirs of the said Martha Clark has this day paid the said Johnson Reynolds $5 on gates on said road and also the said David Clark is to help the said Johnson Reynolds to make the gates on said road and the said Johnson Reynolds that any one looking after the interest of the said-Martha Clark shall have the same privilege to the said road. Witness the following.
“Johnson Reynolds. (Seal.)”
As already indicated, this contract was introduced in evidence, not by Reynolds, but by the complainants themselves, and its introduction was strenuously opposed by Reynolds. There seems to be some contention now on the part of Reynolds that this contract can be construed as a recognition on the part of Mrs. Clark and William H. Clark of the right of Reynolds to stop their use of the way. We do not take this view of the contract. While it is true that David Clark paid Reynolds $5 for the contract, the paper on its face shows a recognition of the old road, and although it does not purport to accord the Clarks the full rights to which they are entitled under their prescriptive right of way, it does give them very much wider rights than those which Reynolds is now willing to allow them. As a matter of fact, he has, according to the record, plainly violated the terms of this contract, and it is very certain that he cannot be allowed to defend his position in this suit by the terms of a contract which he himself has disregarded.
We are of opinion that the complainants are entitled to the relief prayed for in their bill, which is the establishment and protection of the right of way in question from the eight and one-half acres to the public road.
It follows from what has been said that the decree complained of must be reversed, and this court, proceeding to enter the decree which the lower court should have entered, will decree the establishment of the way, but will limit the same to its use as a passageway between the Sullins land and the road, and will enjoin and restrain William Clark from using it for any purposes in connection with his home place.
Reversed.